Monday, June 1, 2020
The law of mental stress causing mental disability, and its compensability under workers’ compensation (the law of the “mental-mentals”), has been the subject of considerable study. The topic is treated in encyclopedias published for lawyers, most famously in the multi-volume treatise originally authored by Arthur Larson. And, when mental-mentals constituted a crisis area of workers’ compensation, the academic law journals were full of pro and con analyses of whether coverage of such claims was proper and, if so, under what conditions.
In a book chapter I have prepared for the insurance expert Don DeCarlo, I have tried to examine anew this still-controversial aspect of workers’ compensation.
I have undertaken this effort in a period when, after several decades during which many states withdrew or limited coverage, legislatures are enacting or considering presumption and other laws to ease the ability of first responders (police, fire, and emergency medical professionals) to secure coverage for mental injury and disability, particularly Post-Traumatic Stress Disorder (PTSD). The present day is also marked by a seeming parallel trend: at least some state courts are reading their traditional laws in the mental-mental area liberally so as to award compensation to such traumatized workers. Finally, I have undertaken this survey and analysis in the aftermath of successive Middle East wars, which generated an epidemic of mental illness and suicide among soldiers, a phenomenon which raised awareness about PTSD and which only now is being fully analyzed.
The book chapter (here, in the link below, presented as an article) concludes with tables in which the laws of the state and federal programs are identified and specifically referenced by statute and/or important caselaw. The first table is an unabridged recounting of the mental-mental laws; the second identifies the special first responder laws which have been enacted, or which are being considered; and the third details the statutory features of the first responder laws that have been enacted as of April 27, 2020.
(Professor Duff has alerted me, however, that the Wyoming law which I characterize as proposed has now become law.)
This article first provides an historical account of how mental injuries have been addressed in workers’ compensation laws. This article then sets forth the arguments, pro and con, with regard to compensability. Thereafter, this article, addressing the first of the tables, discusses the laws among the states on the subject of mental-mental injuries. In that discussion, a discrete examination of each jurisdiction’s laws is necessarily not undertaken (the current Larson treatise “digest,” which admirably undertakes this feat, runs to 275 pages), but the discussion sets forth key statutory features and details how lawyers and judges have approached and interpreted them. That discussion is followed by an analysis of the first responder PTSD laws, which constitute the emerging development in this area. That analysis addresses the tables of the second and third appendices. This article concludes with recommendations for how mental-mental cases are best treated under workers’ compensation laws.
Note: How the State Line Up
Currently, among the 50 states, 33 permit recovery, under various tests, for mental-mental injuries. Seventeen, meanwhile, exclude such claims. The District of Columbia, the Longshore Act, and FECA also allow recovery for mental-mentals.
Still, it is difficult, in this realm, to speak in absolutes. Nuance attends some state laws. Thus, in Arkansas, mental-mentals are prohibited, except when the mental stress is attended by an act of violence. Thus, presumably, an employee who is robbed, kidnapped, tied up, and otherwise terrorized, with no physical injury, can establish a claim. Meanwhile, in California, mental-mentals are prohibited for gradual stress experienced in the first six months of employment, but such claims may be cognizable even during this initial period of employment if having their genesis in a “sudden and extraordinary employment condition.” And, of course, some of the most restrictive states, like Florida, have established carve-outs accommodating mental-mentals, particularly for PTSD, in the case of first responders.